By Stephen I. Vladeck, a professor at American University Washington College of Law, and author of a recent ACS Issue Brief, "Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali."
Last week's near-acquittal of Ahmed Ghailani, the first Guantánamo detainee transferred to (and tried by) the civilian criminal justice system, has produced predictable reactions from most observers. Those (like me) who believe that the "Article III" federal courts are competent to handle high-profile terrorism cases have generally portrayed the split verdict as further proof that military commissions are an unnecessary - let alone potentially unlawful - departure from a well-established (and properly functioning) norm. In contrast, those who have maintained all along that anyone accused of being affiliated with al Qaeda is not entitled to the protections of our everyday processes point to the exclusion of coerced testimony and the resulting near-acquittal as proof of the dangers inherent in trying terrorism suspects in civilian courts, and of the need for a forum more likely to secure convictions. Regardless of one's views, I think it's safe to say that no one will be moved off their previous position by the result in this case.
The one divergent reaction comes in an argument offered by Jack Goldsmith and Ben Wittes, in both a Washington Post op-ed and in a series of posts at their "Lawfare" blog: Rather than wrangle over the suitability of two competing prosecutorial forums that each have their own flaws, Goldsmith and Wittes argue, the government should simply detain individuals like Ghailani without trial. As they write, "Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation."
Indeed, Goldsmith and Wittes often characterize this position as a middle ground between those who favor civilian trials and those who support military commissions. Say what you will about the merits of their view (and I'll have more to say in a moment), but it's difficult to see how it is in the "middle" of anything. Wartime detention of enemy belligerents and criminal prosecution - even of alleged war criminals - serve wholly distinct goals. To offer the former as an alternative to the latter is to assume that criminal prosecution in any of these cases is not actually about establishing guilt and/or imposing punishment, but is merely a pretext for incapacitation. I'm only an amateur when it comes to the analytical underpinnings of our criminal justice system, but I, for one, am not so willing to make that assumption. Nor is the power to detain without charges a lesser form of the power to prosecute; just ask David Hicks and Salim Hamdan, both of whom have long-since finished serving the sentences imposed on them by military commissions.